Citation Nr: 0916952
Decision Date: 05/06/09 Archive Date: 05/12/09
DOCKET NO. 08-16 070 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for a
vision disorder, claimed as myopic astigmatism, high myopia
and defective version.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Rory E. Riley, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1943 to May 1946.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a January 2008 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska, which denied the benefits sought on
appeal. The Veteran appealed that decision to BVA, and the
case was referred to the Board for appellate review.
A hearing was held in April 2009, at the Lincoln RO, before
the undersigned Acting Veterans Law Judge. A transcript of
the testimony is in the claims file.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002 & Supp. 2008).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the Veteran's appeal has been obtained.
2. In a Board decision issued in January 1983, the RO
determined that service connection for a vision disorder was
not warranted, on the basis that the claimed condition
existed prior to service and was not aggravated by service.
3. Evidence added to the record since the final January 1983
Board denial is cumulative and redundant of the evidence of
record at the time of the decision and does not raise a
reasonable possibility of substantiating the Veteran's
service connection claim.
CONCLUSION OF LAW
New and material evidence has not been received to reopen the
claim of entitlement to service connection for a vision
disorder. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008);
38 C.F.R. § 3.156(a) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has considered the Veterans Claims Assistance Act
of 2000 (VCAA), which imposes a duty on VA to notify and
assist Veterans in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2008). Upon receipt of a complete or substantially
complete application for benefits, VA is required to notify
the Veteran and his/her representative, if applicable, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the Veteran of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the Veteran is expected to provide; and (4)
must ask the Veteran to provide any evidence in his/her
possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). This notice must be provided prior
to an initial unfavorable decision by the agency of original
jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004).
(The Board notes that 38 C.F.R. § 3.159 was revised,
effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30,
2008). The amendments apply to applications for benefits
pending before VA on, or filed after, May 30, 2008. The
amendments, among other things, removed the notice provision
requiring VA to request the Veteran to provide any evidence
in the Veteran's possession that pertains to the claim. See
38 C.F.R. § 3.159(b)(1).)
Further, in Dingess v. Nicholson, the United States Court of
Appeals for Veterans Claims (Court) held that, upon receipt
of an application for a service-connection claim, VA is
required to review the evidence presented with the claim and
to provide the Veteran with notice of what evidence not
previously provided will help substantiate his/her claim.
19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b). Specifically, VA must notify the
Veteran of what is required to establish service connection
and that a disability rating and effective date for the award
of benefits will be assigned if service connection is
awarded.
Concerning applications to reopen claims that have been the
subject of a prior final denial by VA, nothing pertaining to
the duty to assist claimants shall be construed to require VA
to reopen a claim that has been disallowed except when new
and material evidence is presented or secured. 38 U.S.C.A. §
5103A (f). To provide adequate notice with regard to a claim
to reopen, VA must look at the bases for the denial in the
prior decision and respond with a notice letter that
describes what evidence would be necessary to substantiate
the element or elements required to establish service
connection that were found insufficient in the previous
denial. Kent v. Nicholson, 20 Vet. App. 1 (2006).
The Board finds that the VCAA duty was satisfied by a letter
sent to the Veteran in October 2007. This letter informed
the Veteran that his claims were previously denied in July
1981, that the appeal period for that decision had expired,
that the decision was now final, and that in order to reopen
his claim, new and material evidence was needed. The letter
went on to inform the Veteran that in order qualify as new,
the evidence must be in existence and be submitted to VA for
the first time, and that although VA would make reasonable
efforts to help obtain currently existing evidence, they
would not provide a medical examination or obtain a medical
opinion until his claim was successfully reopened. The
letter also stated that in order to be considered material,
the additional existing evidence must pertain to the reason
why his claims were previously denied. The letter continued
that the Veteran's claim was previously denied because the
evidence of record did not indicate that his eyes were
damaged when he was in service, and his pre-service defective
vision was not shown to have been aggravated by military
service. Therefore, he was told that he must submit evidence
that related to that fact. The letter also stated that new
and material evidence must raise a reasonable possibility of
substantiating the claim. In other words, the evidence
cannot simply be repetitive or cumulative of the evidence of
record when the claim was previously decided.
Although the October 2007 letter did not refer to the RO's
most recent previous denial of the Veteran's claim on the
merits in November 1981, or to the Board's denial of the
claim in January 1983, there is no prejudicial error with
respect to the Veteran's notice because the July 1981
decision denied the Veteran's claim for the same reason;
namely, that the medical evidence of record failed to show
any aggravation of the Veteran's pre-existing vision disorder
during service. As such, the Veteran was adequately advised
of the bases for the previous denial to determine what
evidence would be new and material to reopen the claim. See
Kent v. Nicholson, 20 Vet. App. 1 (2006). Therefore, the
Board finds that proper VCAA notice was provided in this
case.
Under the VCAA, VA also has a duty to assist the Veteran in
the development of a claim. This includes assisting the
Veteran in procuring service treatment records and other
relevant treatment records and providing a VA examination
when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Here, VA obtained the Veteran's service treatment records and
private treatment records pertinent to the years after
service.
The Board also acknowledges that the Veteran has not been
afforded a VA examination in connection with his current
application to reopen his claim for a vision disorder. Under
the law, an examination or medical opinion is considered
necessary if the information and evidence of record does not
contain sufficient competent medical evidence to decide the
claim, but (1) contains competent lay or medical evidence of
a current diagnosed disability or persistent or recurrent
symptoms of disability; (2) establishes that the Veteran
suffered an event, injury, or disease in service; and (3)
indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in
service or with another service- connected disability. 38
C.F.R. § 3.159(c)(4). Although the Veteran has not been
afforded a VA examination in connection with the application
to reopen the claim for service connection for a vision
disorder, the duty to provide a medical examination and/or
obtain a medical opinion in a claim for disability
compensation benefits does not apply in cases involving an
attempt to reopen a finally adjudicated claim unless new and
material evidence is presented or secured. See 38 C.F.R. §
3.159(c)(4)(iii) (2008); see also Paralyzed Veterans of
America, et. al., v. Secretary of Veterans Affairs, 345 F.3d
1334 (Fed. Cir. 2003). As is discussed more fully below, the
Board finds that new and material evidence has not been
presented or secured in this case; therefore the duty to
provide a medical examination and/or medical opinion does not
apply to the Veteran's claim. The Board, therefore, finds
that the VCAA duty to assist has also been satisfied.
LAW AND ANALYSIS
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
In order to reopen a claim which has been denied by a final
decision, the claimant must present new and material
evidence. 38 U.S.C.A. § 5108. For applications filed after
August 29, 2001, as was the application to reopen the claim
in this case, new and material evidence means evidence not
previously submitted to agency decisionmakers; which relates,
either by itself or when considered with previous evidence of
record, to an unestablished fact necessary to substantiate
the claim; which is neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and which raises a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a). To reopen a previously disallowed claim,
new and material evidence must be presented or secured since
the last final disallowance of the claim on any basis,
including on the basis that there was no new and material
evidence to reopen the claim since a prior final
disallowance. See Evans v. Brown, 9 Vet. App. 273, 285
(1996). For purposes of reopening a claim, the credibility
of newly submitted evidence is generally presumed. See
Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in
determining whether evidence is new and material,
"credibility" of newly presented evidence is to be presumed
unless evidence is inherently incredible or beyond competence
of witness).
In this case, the Veteran is seeking to reopen his claim of
entitlement to service connection for a vision disorder,
which was previously denied by the RO in July 1981 and
November 1981, and by the Board in January 1983. The Veteran
did not appeal the Board decision and it became final. 38
U.S.C.A. §§ 7103(a), 7104(b) (West 2002 & Supp. 2008); 38
C.F.R. §§ 20.1100, 20.1105 (2008).
In September 2007, the Veteran essentially requested that his
claims for service connection for a vision disorder be
reopened. The January 2008 rating decision now on appeal did
not reopen the Veteran's claim. However, the requirement of
submitting new and material evidence is a material legal
jurisdictional issue that the Board is required to address on
appeal, despite the RO's actions. See Barnett v. Brown, 83
F.3d 1380, 1383-1384 (Fed. Cir. 1996).
Additional evidence received since the final January 1983
Board decision consists of private treatment records, as well
as the Veteran's own contentions and his sworn testimony at
his April 2009 hearing. The Board has thoroughly reviewed
the evidence associated with the claims file subsequent to
the January 1983 Board decision and finds this evidence does
not constitute new and material evidence which is sufficient
to reopen the previously denied claim for service connection
for a vision disorder. Although this evidence is certainly
new, in that it was not previously of record, the evidence is
not material in that it does not relate to an unestablished
fact necessary to substantiate the claim and does not raise a
reasonable possibility of substantiating the claims. The
January 1983 Board decision denied service connection because
there was no evidence that the Veteran's pre-existing vision
disorder had worsened beyond the natural progress of the
disease during service. Although the private treatment
records show ongoing treatment for the Veteran's vision
disorder, they do not provide that this condition was
permanently worsened beyond the natural progress of the
disease during the Veteran's active service, or is otherwise
etiologically related to his active service. Therefore,
after reviewing the evidence submitted by the Veteran in his
attempt to reopen his claim for a vision, the Board finds
that new and material evidence has not been presented to
reopen the Veteran's previously denied claim. See 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
Further, although the Veteran may sincerely believe that he
has a vision disorder related to his active service, the
Veteran, as a layperson, is not qualified to render a medical
opinion as to etiology or diagnosis. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Generally,
laypersons are not competent witnesses when it comes to
offering medical opinions or diagnoses, and such evidence
does not provide a basis on which to reopen a claim of
service connection. Moray v. Brown, 5 Vet. App. 211 (1993).
In addition, while the Veteran is competent to report what he
experienced, i.e. that his vision was affected by the mine
blast in Germany in 1945, his assertions are essentially
duplicative of his previous assertions in support of his
claim. Thus, the Veteran's contentions are not deemed to be
"new and material evidence" and cannot serve to reopen the
claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
For these reasons, the Board determines that the evidence
submitted subsequent to the January 1983 Board decision is
either cumulative or redundant; does not relate to an
unestablished fact necessary to substantiate the claim; and
does not raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a). Consequently, the evidence
received since the last final disallowance of the Veteran's
claim is not new and material, and his petition to reopen the
claims for service connection for a vision disorder must be
denied. 38 U.S.C.A. § 5108. In reaching this conclusion,
the Board acknowledges that the benefit of the doubt is to be
resolved in the claimant's favor in cases where there is an
approximate balance of positive and negative evidence in
regard to a material issue. However, as the preponderance of
the evidence is against the Veteran's present claim to reopen
the previously disallowed claim for service connection for a
vision disorder, that doctrine is not for application. See
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
As no new and material evidence has been received, the claim
for service connection for a vision disorder is not reopened;
the appeal is denied.
____________________________________________
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs